Coleman v Clohessy

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Maurice Collins
• Judgment Date: 06 December 2022
• Neutral Citation: [2022] IECA 279
• Year: 2022
• Docket Number: Record Number: 2022/86

Between

Valerie Coleman and Fintan Coleman

Plaintiffs/Respondents

and

Ann Clohessy, Veronica Clohessy and Patrick Clohessy

Defendants/Appellants

[2022] IECA 279

Faherty J.

Collins J.

Butler J.

Record Number: 2022/86

High Court Record Number: 2019/15CA

THE COURT OF APPEAL

Set-aside motion – Jurisdiction – Courts of Justice Act 1936 s. 39 – Appellants seeking to appeal from the High Court order refusing the appellants’ set-aside motion – Whether an appeal lay to the Court of Appeal from the order refusing the set-aside motion

Facts: The plaintiffs/respondents, Ms Coleman and Mr Coleman, in Circuit Court proceedings, maintained that they were the executors jointly appointed by the will of the deceased, Mr Clohessy. They sought an order setting aside caveats filed by the defendants/appellants, Ms A Clohessy, Ms V Clohessy and Mr P Clohessy, and an order admitting the deceased’s will to probate in solemn form. On 11 January 2019, Judge O’ Donnabháin made an order allowing six weeks for Mr P Clohessy to deliver his defence, with costs reserved to the trial. On 18 January 2019, Mr P Clohessy appealed that Circuit Court order to the High Court. In July 2021, he issued a motion in the High Court seeking discovery from the plaintiffs. On 5 November 2021, Meenan J made an order striking out the appeal. On 15 November 2021, Twomey J made an order striking out the discovery application. Mr P Clohessy then issued a motion on 24 November 2021 in which he sought to set aside both Meenan J’s order and Twomey J’s order because of irregularity in the proceedings. The set-aside motion came on for hearing before the High Court (Phelan J) on 28 March 2022. As regards the application to set aside Meenan J’s order, Phelan J was of the view that no basis had been identified in the documents as to why she should interfere with that order. As to Twomey J’s order, Phelan J stated that the High Court had no jurisdiction to make an order for discovery in Circuit Court proceedings except on appeal from an order of the Circuit Court and no order of the Circuit Court had been made in this instance so there was no basis for interfering at all with the order of Twomey J. Phelan J ordered that Mr P Clohessy should pay the costs of the set-aside motion. She declined to place a stay on that order. Mr P Clohessy sought to appeal to the Court of Appeal from the order of Phelan J made on 28 March 2022. On 7 October 2022, Costello J directed that the issue of whether an appeal lay to the Court of Appeal from that order be determined as a preliminary issue.

Held by Collins J that the judgment and order the subject of the appeal was made as part of the High Court’s appellate jurisdiction under Part IV of the Courts of Justice Act 1936; therefore, s. 39 of the 1936 Act precluded any appeal from the High Court to the Court of Appeal.

Collins J held that the appeal must therefore be struck out.

Appeal struck out.

Approved No

Redactions needed

JUDGMENT of Mr. Justice Maurice Collins delivered on 6 December 2022

BACKGROUND

1 The issue before the Court is whether it has jurisdiction to entertain this appeal, having regard to the provisions of Section 39 of the Courts of Justice Act 1936 ( “the 1936 Act”).

2 Section 39 provides that:

“The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable.”

Section 39 appears in Part IV of the 1936 Act and refers to appeals under that Part from the Circuit Court to the High Court.

3 Decisions within the scope of Section 39 constitute an “ exception” from the appellate jurisdiction of this Court under Article 34.4.1 of the Constitution: see for example ACC Loan Management Limited v Fagan [2021] IESC 20, [2021] 1 IR 781 and the authorities discussed there, including Andrews Productions v Gaiety Theatre [1973] IR 295 (which concerned the appellate jurisdiction of the Supreme Court from the High Court prior to the establishment of the Court of Appeal).

4 Before considering Section 39 further, it is necessary to say something about these proceedings and the nature of the order sought to be appealed. Ms Coleman and Mr Coleman are Plaintiffs in Circuit Court proceedings (Record No 2014/2013) which were commenced in Cork Circuit Court as far back as August 2014 (hereafter “the Circuit Court Proceedings”). The proceedings are testamentary proceedings relating to the estate of the late Peter Clohessy (“ the Deceased”), who died in July 2010. The Deceased had been married to the First Defendant (who died in July 2021 and who had been a ward of court since August 2016) and was the father of the First Plaintiff (who is married to the Second Plaintiff) as well as of the Second and Third Defendants. The Plaintiffs maintain that they are the executors jointly appointed by the Deceased's will and their Testamentary Civil Bill seeks an order setting aside caveats filed by the three Defendants and an order admitting the Deceased's will to probate in solemn form.

5 It is evident from the papers that there were earlier testamentary proceedings brought by the same parties in the Circuit Court in Cork seeking the same relief. Those proceedings were struck out at some point without any adjudication on their merits. It is also apparent that there have been other disputes relating to the estate of the Deceased and/or assets held by him prior to his death.

6 The Circuit Court Proceedings are pending before the Circuit Court in Cork. On 11 January 2019 His Honour Judge O' Donnabháin made an order allowing 6 weeks for the Third Defendant, Patrick Clohessy, to deliver his Defence, with costs reserved to the trial. That order appears to have been made on foot of an application by the Plaintiffs, presumably one seeking judgment in default of defence. I shall refer to this order as “ the Circuit Court Order”.

7 On 18 January 2019 Mr Clohessy appealed the Circuit Court Order to the High Court sitting in Dublin. That appeal was given the record number 2019 15 CA (which is also the record number recited in the title above). Mr Clohessy's appeal came on before the High Court (Meenan J) on 5 November 2021 and on that date Meenan J made an order striking out the appeal. I shall refer to this order as “the Meenan J Order”.

8 In July 2021, prior to the determination of the appeal from the Circuit Court Order, Mr Clohessy issued a motion in the High Court seeking discovery from the Plaintiffs “or any associated relevant potential third party” of “all documents, records or other materials (including those in electronic form) which are now or have been in their possession, custody or control … in relation to the matters at issue herein” including material obtained from the Legal Aid Board and a number of counsel who (as I understand the position) previously acted for the Plaintiffs in other related proceedings and against whom Mr Clohessy makes various complaints which it is unnecessary to recite. The discovery motion purportedly issued in Mr Clohessy's appeal from the Circuit Court Order and bore record number 2019/15CA.

9 The question of whether and to what extent discovery is necessary or appropriate for the proper determination of the Circuit Court Proceedings is, of course, a matter for the Circuit Court in Cork, at least in the first instance. In the course of the hearing before this Court, it was confirmed that Mr Clohessy has not sought discovery in the Circuit Court to date, though he says that he made previous efforts to obtain relevant documentation which were unsuccessful. It follows that Mr Clohessy is entitled to look for discovery in the Circuit Court Proceedings in the ordinary way.

10 In any event, Mr Clohessy's discovery application came before the High Court (Twomey J) on 15 November 2021. The hearing proceeded remotely and Mr Clohessy did not attend. He says that the Plaintiffs' solicitors had agreed to an adjournment of the application to accommodate the fact that he was not in a position to participate in a remote hearing. However, the application was not adjourned and instead the judge made an order striking out the application (“ the Twomey J Order”).

11 On 19 November 2021, Mr Clohessy delivered a “ Conditional Defence” in the Circuit Court proceedings. The substance of that defence is not relevant to the issues the Court has to decide on this appeal but I note that the “ conditionality” of that defence is based, at least in part, on the jurisdictional issue that is considered later in this judgment. Logically, one might have thought that the filing of a defence would have rendered moot any issue arising from the Circuit Court Order or the Orders made by the High Court on appeal from it. Mr Clohessy maintains his appeal nonetheless.

THE JUDGMENT AND ORDER OF THE HIGH COURT

12 Mr Clohessy then issued a further motion on 24 November 2021 — once again bearing record number 2019/15 CA — in which he sought to set aside both the Meenan J Order and the Twomey J Order “because of Irregularity in the proceedings” (“ the Set-aside Motion”). The motion was grounded on an affidavit of Mr Clohessy sworn on 24 November 2021 in which he suggested that the Circuit Court Proceedings should not have been listed or moved without first being reconstituted to reflect the death of the First Defendant. He also relied on the agreement with the Plaintiffs' solicitors to the adjournment of his discovery application on 15 November 2021.

13 The Set-aside Motion came on for hearing before the High Court (Phelan J) on 28 March 2022. Mr Clohessy participated in that hearing. The Judge ruled on the motion ex tempore and this Court has been furnished with a transcript of her ruling. As regards the application to set aside the Meenan J Order, the Judge was of the view that no basis had been identified in the documents as to why she should interfere with that order. It was a “ ...